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Employer's DNA test rule raises legal concerns

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AKRON, Ohio—The University of Akron is expected to soon rescind a controversial rule that lets the university demand DNA samples from job applicants as part of a criminal background check.

Observers say the requirement—believed to be the first genetic testing rule imposed by an employer—violates the Genetic Information Nondiscrimination Act and the Americans with Disabilities Act, as well as raises significant privacy concerns. Other employers generally have not considered such rules, experts note.

The regulation, which initially was approved by the university's trustees in August but not publicized until late last month, may be rescinded by the trustees at their next meeting Dec. 16, according to a source familiar with the situation. The regulation, which has been widely criticized, states that “at the discretion of the University of Akron, any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check.”

In a Nov. 5 letter to Harvey L. Sterns, chairman of the university's faculty senate, university Vp and General Counsel Ted A. Mallo calls for the regulation to be changed to read more broadly as: “The candidate may be required by the law enforcement agency to provide additional information which is needed by the law enforcement agency for purposes of conducting the criminal background check.”

Mr. Mallo states in the letter that the DNA provision was inserted after discussion among trustees “which centered around the likelihood that future reliance on fingerprinting would diminish and using DNA tests for criminal identification purposes will likely become the more prominent technology.”

The letter says the rule's purpose “was to secure a pre-employment criminal background check for applicants selected for employment...not to collect DNA from applicants for employment.”

Mr. Mallo said in the letter he is recommending the revision “in order to both clarify the intent and the language of the current university rule and avoid any real or perceived conflict with "GINA.'” A university spokesman did not return calls seeking comment.

Title II of GINA, which took effect Nov. 21, states that, with some narrow exceptions, “it shall be unlawful employment practice for an employer to request, require or purchase genetic information with respect to an employee or a family member of the employee.”

The university's rule is “a terrible idea,” said Jonathan T. Hyman, a partner with Kohrman Jackson & Krantz P.L.L. in Cleveland. If someone submits genetic information, and then is not hired, in light of GINA, “it's going to raise a colossal red flag.”

Paul E. Starkman, a partner with law firm Arnstein & Lehr L.L.P. in Chicago, said, “I always tell people, be careful what you ask for, because it can later come back to bite you.”

Employers that acquire genetic information that reveals disabilities or a potential genetic disposition run the risk of tainting their hiring process, he said.

“You can try and minimize those risks by segregating the information and keeping it confidential, but usually there's somebody who's going to have to take a look at this information that (will) determine whether you go ahead with the hiring process or not, and that's where it can cause potential problems,” he said.

“It may be more trouble than it's worth,” said Mr. Starkman.

Anthony J. Oncidi, a partner with law firm Proskauer Rose L.L.P. in Los Angeles, said, “It seems to me the cost of the potential liability outweighs any prospective benefits,” he said.

Brian T. Ashe, a partner with Seyfarth Shaw L.L.P. in San Francisco, said the rule also raises concerns about privacy rights violations because “it amounts to snooping around that genetic blueprint.”

Even if only initially used for a criminal background check, “you're still going to have this information on hand that is incredibly private and incredibly detailed...that could be used at some future point” for purposes that it was not intended to be used for today, said Mr. Ashe.

“I think it would be very difficult for employers to take on the responsibility of keeping that information safe in the long run,” he said.

Rich Stover, a principal with Buck Consultants L.L.C. in Secaucus, N.J., said the rule also raises concerns about violating the ADA, which prohibits non-job-related exams. “You can certainly view collecting DNA” as falling into this category, he said.

The rule “would seem to be fraught with problems in complying with federal law, and I'm not sure, at least right now, what value collecting data would have in identifying...people with a criminal background,” Mr. Stover said.

The regulation as it now reads also would hurt faculty recruitment, said William D. Rich, an associate professor in Akron University's law school, who submitted a resolution —which was unanimously approved—to the faculty senate condemning the rule.

The policy is “poorly thought out and ill-advised,” said Mr. Rich, who is the senate's vice chairman.

Observers say employers generally have not considered implementing similar approaches. They say one of the rare exceptions concerning DNA and employers involved the Fort Worth, Texas-based Burlington Northern Santa Fe Corp., which agreed in 2002 to pay $2.2 million to 36 workers who claimed the company had conducted genetic tests without their permission. The EEOC, which sued Burlington in 2001, had claimed the genetic testing program, which purportedly was intended to explore a possible genetic link to carpal tunnel syndrome, violated the ADA.

Dr. Harlan Levine, a principal with Towers Perrin in Los Angeles, said, at this point, “the whole field of how to manage genetic information is emerging, and so little is known even on the technical side about what to do with most of the genetic information, I think it's unlikely employers will jump in early and start requiring DNA testing.”

“I'm sitting here struggling with why employers would want to do this,” said Michael Aitken, director-government affairs at the Alexandria, Va.-based Society for Human Resources, whose organization has had a policy opposing genetic testing for several years.

“It strikes me as probably more invasive in terms of the kinds of inquiries an employer needs to do than would otherwise be necessary,” Mr. Oncidi said.